Het pre-insolventieakkoord, grondslagen en raamwerk
|PhD ceremony:||Mr N.W.A. (Nico) Tollenaar|
|When:||December 01, 2016|
|Supervisors:||prof. mr. dr. F.M.J. (Frank) Verstijlen, prof. dr. O. (Oscar) Couwenberg|
|Where:||Academy building RUG|
Legislation is currently being prepared, at both the European and the national levels, to introduce proceedings that aim to rescue ailing businesses before formal insolvency proceedings are begun. Such proceedings are commonly referred to as “pre-insolvency” proceedings. They provide for the right, outside formal insolvency proceedings, to propose a restructuring plan to creditors and other capital providers and the ability under certain circumstances to impose the plan upon opposing parties. On 12 March 2014 the European Commission (EC) issued a recommendation urging the Member States to introduce pre-insolvency proceedings into their national systems. As part of the Action Plan for a Capital Markets Union, the EC has announced that it intends to convert the recommendation into a binding directive and that it will publish a draft directive to this effect before the end of this year. At the same time, the Dutch Government is working on a draft of the Continuity of Enterprises Act (Voorontwerp Wet Continuïteit Onderneming II), which seeks to introduce pre-insolvency proceedings in the Netherlands.
Tollenaar has looked at the justification for pre-insolvency proceedings, what their purpose should be, and what that they should look like. Against that background he has assessed the legislative initiatives of the EC and the Dutch Government.
Tollenaar concludes that there is no justification for proceedings that interfere with parties’ rights where the debtor is not insolvent. There is thus no basis for true “pre-”insolvency proceedings. He further concludes that the purpose of the new generation proceedings should not be to provide the debtor with an instrument to prevent creditors from enforcing their rights in order to avoid liquidation. Their purpose should be to enable creditors to enforce their rights in a better and more flexible manner than is possible with the current generation of traditional insolvency proceedings. Proceedings that enhance the efficient enforcement of creditors’ rights provide an effective instrument for rescuing businesses where appropriate and, at the same time, increase the confidence of lenders in the judicial infrastructure for lending and thus improve the access to finance.
Where the EC recommendation is concerned, Tollenaar criticises the EC for failing to recommend that not only the debtor, but also creditors be given the right to initiate proceedings. This could lead to the procedure remaining unused in situations where it could provide a solution and to creditors having insufficient influence over the contents of the measures that the proceedings seek to implement. The EC recommendation further fails to acknowledge the need to be able to bind shareholders who have no economic interest and obstruct a solution. Another point of criticism is the recommendation’s silence on the need for efficient liquidation proceedings. It focusses only on restructuring proceedings. The EC’s policy objectives, however, are focused on small and medium enterprises (SMEs). For these enterprises efficient liquidation proceedings are the more important of the two. An efficient liquidatieprocedure often offers a more effective instrument to rescue a business than a restructuring procedure and this this is almost always the case for SMEs.
The Dutch draft bill is heading in the right direction but still needs improvement on certain technical points. Tollenaar stresses that even the best designed procedure will not function properly if the proceedings are not handled by a specialised insolvency court. Tollenaar believes that, if the draft bill is further improved and properly implemented, it will significantly enhance the ability of creditors to preserve and recover value (by rescuing the business where that is appropriate) and that it has the potential to become a world-leading instrument. This will significanly help to realise the ambition of the Netherlands to become an international financial centre.